Barr Tribunal Report Appendix 2

APPENDIX 2

Memorandum on Procedures

1. General

1 .1 This memorandum contains an outline of the procedures which the Tribunal will follow. It is not exhaustive or definitive. The Tribunal may add to, alter, or amend these procedures in the course of its work. The Tribunal may depart from these procedures to avoid unfairness or to achieve the efficient discharge of its business. If the Tribunal departs from these procedures it will state that it is doing so and why. Nothing in this memorandum shall have the effect of limiting or removing any powers, functions or discretions vested in the Tribunal by law. In adopting these procedures, the Tribunal is mindful of the definition adopted by Hamilton C.J. in delivering the judgement in Haughey v. Moriarty [1999] 3 I.R. 1 of ‘‘proceedings of the Tribunal’’ as involving the following stages:

i. a preliminary investigation of the evidence available;

ii. the determination by the Tribunal of what it considers to be the evidence relevant to the matters into which it is obliged to inquire;

iii. the service of such evidence on persons likely to be affected thereby;

iv. the public hearing of witnesses in regard to such evidence and the cross-examination of such witnesses by or on behalf of the persons affected thereby;

v. the preparation of a report and the making of recommendations based on the facts established at such public hearing.

2. Investigation

2.1 The Tribunal will carry out a preliminary investigation in private of the possible evidence available.

2.2 The Tribunal will seek to ascertain, as appropriate, from interested persons and bodies the names of potential witnesses who may be able to give relevant evidence in regard to the subject matter of the inquiry or who may have documents relevant to such subject matter.

2.3 The Tribunal will make orders for discovery as necessary against persons or bodies who may have documents relevant to the subject matter of the inquiry.

Such persons or bodies or other persons affected will be given an adequate opportunity to make representations to the Tribunal prior to and in relation to the making of any such order.

2.4 The Tribunal may invite persons who may be in a position to assist the Tribunal to do all or any of the following things:

(a) to furnish a statement of proposed evidence;

(b) to answer questions in writing;

(c) to attend a private meeting with legal representatives of the Tribunal, where deemed appropriate. In all cases the person requested shall be under no obligation to comply with the request. A person requested to attend the meeting with legal representatives of the Tribunal shall be invited to have his or her legal representatives present if he or she so wishes.

2.5 The Tribunal will determine what it considers to be evidence relative to the matters into which it is obliged to inquire having regard to the documents which it has received, any statements furnished to it and any other relevant information.

2.6 The Tribunal will serve copies of proposed evidence on parties with full representation; on relevant parties with limited representation and on other persons likely to be affected thereby.

3. Interpretation

3.1 It is the function of the Tribunal to interpret its Terms of Reference as necessary. It is difficult to give meaningful interpretation without reference to relevant facts. It may not be possible for the Tribunal to do so until it has completed its preliminary investigation. The Tribunal intends, if necessary, to explain in public its interpretation of the Terms of Reference before the commencement of the hearing of oral evidence.

3.2 Any interested person can seek clarification from the Tribunal any time as to its interpretation of a particular provision in the Terms of Reference. Such request should be made in writing to the solicitor for the Tribunal.

3.3 The Tribunal may as its work progresses add to, alter or further clarify its interpretation of the Terms of Reference in the light of facts or information that has emerged.

4. Oral Hearing

4.1 The Tribunal will hold oral hearings as necessary to allow it to carry out its work. Such oral hearings shall be in public save as may be otherwise decided by the Tribunal in accordance with law. Counsel for the Tribunal will make an opening statement or statements.

4.2 The Tribunal shall decide which witnesses shall be called to give oral evidence to the Tribunal. Persons are encouraged to suggest to the Tribunal witnesses

who they feel would be in a position to give relevant evidence. In deciding which witnesses shall be called the Tribunal will consider all such suggestions.

4.3 Oral evidence shall be given on oath or by affirmation.

4.4 All witnesses will first be questioned by Counsel for the Tribunal. Parties are encouraged to inform Counsel for the Tribunal before the evidence of a witness is given, of matters or questions which they feel should be raised with that witness. The witness may then be questioned by the legal representative of parties affected by such evidence. The right to question any witness shall be determined by the Tribunal having regard to all the circumstances including, inter alia, the nature of the evidence given, the extent to which such evidence affects any other person and the obligation to adopt fair procedures. Following questioning the witness shall be entitled to be examined by his/her own legal representative. Counsel for the Tribunal may further examine the witness in regard to any new matters that have arisen during questioning by other parties.

4.5 A witness will be given the opportunity of adopting his or her statement, if any, as part of his/her evidence subject to any modification or clarification which he or she may wish to make.

4.6 Counsel for the Tribunal will make a closing submission. The legal representative of any party granted representation before the Tribunal will be entitled to make a closing submission to the Tribunal in which he or she will be given an opportunity to deal with and to comment upon any evidence affecting his or her client.

5. Evidence

5.1 It shall be a matter for the Tribunal to decide whether any particular piece of evidence is relevant and/or admissible.

6. Documents

6.1 A person making discovery shall make available to the Tribunal all documents other than those in respect of which a claim for privilege is asserted and accepted by the Tribunal.

6.2 Where discovery is made by any party or person he or she shall swear an Affidavit of Discovery. Such affidavit should contain an individual listing of the documents with a brief description of each item. When privilege is claimed the category of document and the ground for so doing should be briefly stated.

6.3 Where documents are to be made available to the Tribunal either pursuant to an Order for Discovery or for Inspection or voluntarily, the person doing so shall normally retain the original and make a photocopy available to the Tribunal. The original should be kept available for inspection if necessary.

6.4 All documents made available to the Tribunal are potentially liable to be put in evidence in the course of the public hearing of evidence before the Tribunal.

6.5 Documents received by the Tribunal shall be treated as confidential unless and until they are put in evidence in the course of the public hearing of evidence.

6.6 The Tribunal may make copies of documents received by it available to such persons as it considers necessary for the purposes of the Tribunal on the strict basis that the documents will be used solely for the purpose of the Tribunal and that neither the documents nor any material contained in them will be disclosed to any third party without the express permission of the Tribunal. This requirement will no longer apply in respect of any particular document or part thereof if and when that document or part thereof is accepted into evidence in the course of the public hearing.

6.7 On the basis set out herein, the Tribunal will endeavour to provide in advance to parties with full representation, the relevant parties with limited representation and to a proposed witness the documents which will be referred to during the course of the evidence of such witness.

6.8 A party or a proposed witness who believes that a relevant document or documents has or have been omitted from documents provided pursuant to paragraph 6.7 should bring this to the attention of counsel for the Tribunal at the earliest opportunity. If counsel for the Tribunal does not agree to include any such document or documents in the documents provided pursuant to paragraph 6.7, an application may be made to the Tribunal for a direction that the document or documents should be included. Such an application normally should be made before the witness in question begins giving evidence.

6.9 A witness may not refer in giving evidence or be referred in questioning to a document which is not included in the documents provided pursuant to paragraph 6.7 except by permission of the Tribunal. If the Tribunal decides to grant such permission it may require that arrangements are made for the witness and relevant parties to have an opportunity of examining and considering the document before it is referred to in evidence.

7. Sittings

7.1 The Tribunal will carry on oral hearings at such times and dates as may be determined by it and will give suitable notice of such sittings. The Tribunal shall decide the order of witnesses which may be called and the order in which inquiry may be carried out in respect of any fact or circumstance as referred to in the Terms of Reference.

8. Report

8.1 The Tribunal will prepare a report setting out its findings and recommendations on matters specified in or derived from the Terms of Reference.